The minister said she had no interest in progressing her predecessor Simon Power’s plan to introduce an inquisitorial system in New Zealand. Mr Power, a more liberal member of the National Party caucus, had been interested in an alternative trials process and visited courts in Europe to investigate a system in which judges were able to interview victims of sexual crimes, get assistance from specially trained jurors, or come to a verdict without a jury. The inquisitorial model was designed to protect victims or children from the pressure and stress of appearing in the courtroom.

Judith Collins said that while the sentiment for an inquisitorial proposal was sound the practicality was not.

However in squashing the Law Commission’s report she also effectively shelved two other sections offering alternatives to better deal with the complexities of sexual violence c – a specialist sexual violence court (post-guilty plea), and an alternative process for sexual violence case outside the criminal justice system.

This morning on National Radio Jan Jordan of Victoria University called for the extensive work done on this report to be revisited. I think she is absolutely right. I am sure Simon Power would have carried that work through to a better outcome than what we have at the moment.

Just to remind me of what might have been I went back and read Simon Power’s valedictory speech. Among his last words were:

It’s our job to tackle the tough issues, the issues the public pays us to front up to, and come to a view on. There are many debates that Parliament does not want to have for fear of losing votes or not staying on message: abortion, adoption law, children’s rights, and sexual violence issues. I don’t share this timid view.

The truth is, if we don’t have those debates here, where will we have them? Surely people don’t run for Parliament claiming they want to “make a difference”, only to vote for the status quo, otherwise presumably they would be so satisfied with the way the country was running that they wouldn’t feel the drive to seek public office in the first place.

I have a great deal of confidence in the public’s high level of intelligence and engagement in discussing those issues at some point, whenever that may be. But I also have confidence that Parliament is capable of rising to the challenge and dealing with those issues with dignity and distinction.

Collins has been concerned to distinguish herself from Power. She practised law for twenty years, he only did so for three, she said. But when it comes to wisdom and a willingness to work across the House with Jan Logie and Andrew Little on these sensitive issues, I wish we still had Power instead of the Minister for No.

So Judith Collins doesn’t want to mix the inquisitorial with our current adversorial system (article about Collins linked in above post. And she says this:

Collins has equally strong views, but they are the opposite. “We don’t have an inquisitorial system, we have an adversarial system. The state has huge powers and I’m not going to have a system where someone has to prove their innocence

And yet, with the way rape and sexual assault are treated by the justice system, the alleged victim often does have to prove hir innocence.

After leaving university, she worked as a lawyer, specialising in employment, property, commercial, and tax law. She worked as a solicitor for four different firms between 1981 and 1990, and then became principal of her own firm, Judith Collins & Associates (1990–2000). In the last two years before election to Parliament, she worked as special counsel for Minter Ellison Rudd Watts (2000–2002).[4]

Reviews come, reviews go, and women are still raped. Few cases reach the courts and when they do often result in the alleged offender being acquitted while victims today, like victims yesterday, continue to feel as if they are the ones on trial. In this paper I have considered
whether rape investigation and prosecution is improving or worsening by examining six key
areas. My brief assessments are as follows:

1. Reporting rates are still low.
2. Attrition rates are still high.
3. The adversarial justice system is still revictimising complainants.
4. The agencies supporting rape victims are still inadequately funded.
5. Police specialisation is still not accepted as essential.
6. Attitudes towards women who have been raped are still victim-blaming.

While you may have a point there, re parts of proposed law reforms, Mike Smith, it is a bit ridiculous to write a headline calling for “Bring back Simon Power”! Was he not behind the “reforms” to tighten up legal aid access, which was challenged before the courts, and which has led to many now being denied access to justice, as few lawyers bother with doing legal aid work now? Perhaps a reality check would do well?

I actually would want to maintain the adversarial system, as otherwise we will have the accused being pushed to prove their innocence, and being suspected and labeled “guilty”, before any fair trial may prove the opposite.

I have some own experience dealing with the law, my friend, and one case also involved WINZ, and it was shocking what I had to go through, and what a few others I know had to go through, also being “classed” by a “designated” (hatchet) doctor paid by WINZ totally inappropriately as not as sick as my own doctor and specialists diagnosed (correctly). I was then having to go to a biased (hand-picked) Medical Appeal Board, which also had WINZ doctors hearing my “appeal”. Only taking matters further and threatening High Court proceedings, finally brought some WINZ staffers to their senses. I know of a fair few others, with such, and other experiences in other areas.

Also was I once accused of something I never did (not sexual offending at all if that may make you feel assured), and I know how hard it is to get legal aid and to defend yourself against false accusations.

In this case Judith Collins as a legal professional actually talked sense, although some of her comments were not making sense and offensive, I think.

I would be very careful on what you comment and write about. This kind of stuff with sexual exploitation, rape and other allegations often has much detail hiding behind the headlines, which few would expect, know and understand. That is why I have refrained from commenting on this disgusting case of “Roast Busters”. We know injustices and abuse happen daily, and it is WRONG.

But the law is a very difficult terrain, and I want nobody to change the system, where accused have to prove their innocence. Leave it as it is, to prove a person guilty. Persons should rather be educated more about the law, also at school, to understand, learn and prepare, for unforeseen incidents, and to protect themselves from bad outcomes.

That – and holding the police and others to account, would probably make more productive change than changing the law as you suggest.

hmmm. xtasy, I agree on Simon Power overall and some of the very bad things he’s done.

But I also have talked to someone very involved with sexual assault and rape issues in relation to the law, who was very pleased with what Power was doing in that piece of legislation.

I’m not sure why you are so much for the adversarial system as opposed to the inquisitorial system. I’m sure both can be done well or badly. But I can see in the case of sexual assault and rape it could be appropriate given that it often gets stalled on being one person’s word against another.

Also as I pointed out above, at the moment the adversarial system results in the alleged victim being put on trial and having to prove hir innocence. In the process a traumatised victim can be retraumatised.

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.

Basically rather than getting into a combative situation between two sides, the judge seeks to get at the facts.

The main feature of the inquisitorial system in criminal justice in France and other countries functioning along the same lines is the function of the examining or investigating judge (juge d’instruction). The examining judge conducts investigations into serious crimes or complex inquiries. As members of the judiciary, s/he is independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice.

I can see advantages to this over our system when it just comes down to a contest, and maybe who has the best lawyers.

Arguments against the adversarial system are that it gives too much power to the “judge” or inquisitor, and that s/he may not be as motivated to find out the truth as lawyers fighting for their client.

I note also the last link says this:

At the very core of the adversarial system, in fact, is the belief that the individual is responsible for preserving individual rights.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and to many African, South American, and Asian countries. The inquisitorial system is now more widely used than the adversarial system. Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

The court procedures in an inquisitorial system vary from country to country.

So, the current problem with the adversarial approach to sexual assault is that the victims often get put on trial. Therefore I can see the advantages of using some elements of an inquisitorial system in order to get at the facts: to break the stalemate of it being one person’s word against another’s, and to avoid re-traumatising victim by putting hir on trial.

karol I appreciate your research and position, and while we may disagree, I may make a point re this:
“So, the current problem with the adversarial approach to sexual assault is that the victims often get put on trial.”

That is simply not true, as the law is technical and not emotional. I understand what you mean though, which is that a victim will “feel” to be “victim” yet again, being involved in a trial before a court, judge only or jury. A victim is expected to give evidence, and as part of the evidence, some (defence lawyer and perhaps, potentially sceptical judge or jury) will put scrutiny onto the evidence given. But without evidence, and cross examination, anything could be said and claimed, and then not be challenged.

The alternative is a statement or whatever by the victim, and then the defendant having to argue to disprove it.

I see there are some justifications both way, but there are truly situations in life, where a person accused of something may not have an alibi or witness, even though innocent, and then the inquisitorial system would weigh against her or him, no matter what.

While in the adversarial system the accuser and prosecutor have to prove “beyond reasonable doubt” that the accused is guilty.

This may seem to be a fine line of a difference, but believe me, if you end up being accused of something, and have no witness or alibi, you are stuffed under the system you suggest. It is not without a reason that the idea of “innocent until proved guilty” was ever put into law.

xtasy, the thing of victims being Jan Jordan’s report, linked to in the post. And that is a direct result of the adversarial system, whereby the defense lawyer aims to contest the victim’s account of the events. So they often do their best to show the victim was far from “innocent” in the encounter.

This has the effect of putting people off reporting rape and sexual assault.

However something needs to change regarding how victims of sexual violence are treated by the police and in the legal process. The inquisitorial system, proposed by Power and spoken of by Jan Jordon will I believe be an improvement for victims of sexual assault. Lets face it the situation we have now couldn’t be any worse for victims.

I don’t have the statistics, if any exist, but my belief is very few women (or men) for that matter complain of rape, if it didn’t happen. Think about it. Why would you?

I had a friend who was a criminal court judge in São Paulo, Brazil. I spoke with him at great length about the inquisitorial system. It was certainly not the case in his court that the defendant had to prove their innocence. The burden of proof was still on the prosecution.

On the other hand, my experience with Kiwi courts is that the darker skinned the defendant is, the more they do actually have to prove their innocence. The police will lie, even if only by omission, and are automatically believed 99% of the time. I would actually prefer an inquisitorial system for all cases, but especially for sexual assault.

I agree that some of Power’s proposals/policies were/are very damaging.

Actually, I’d rather that the issue wasn’t made about Power, but about the viability of proposals for a more inquisitorial approach to sexual assault and rape cases.

I would look at the content of objections from those in the legal profession before accepting them. Many may just be unable to see beyond the traditional NZ adversarial approach. I understand that support from a less adversarial approach has come from women and anti-sexual violence advocates. In this case it may me that Power listened to them.

I think the details of the proposed inquisitorial approach should be looked at, without presupposing they have been contaminated by Power’s involvement.

Who said he was a decent lawyer he was only in the building three years. Im not sure many in any profession would look back at their 3 year professional development point and think yeah I was decent. If you are honest that is.
Simon was a Nat and while he was at the left of their spectrum he was still way to the right of Labour. This was often lost on some in Labour ( Obviously the likes of Mike) and so it appears still is.
I would ask this of MR Powers career progress. How did a guy who was a Lawyer for three years and then in Parliment for just short of 4 terms end up at Westpac managing the Business Unit?

Personally I think this shows just how much the Nats and the Banking corporates are scratching each others backs.

if someone is charged with murder or rape their previous convictions cannot be considered unless the put forward as a defence their good character. However if you look at the weatherspoon trial or any number of sexual assault cases of the type these boys carried out the woman’s character is sometimes made an issue. That is what they mean when they say the victim is put on trial.

inquisitorial could be used to determine if there is a prima facie case. All parties wld get name suppression by right at that stage. That is my suggestion.

move back to adversarial for the trial if there is one.

if the purpose of justice is finding the truth then we should try this.

we see the police withhold evidence from defences as in the lundy case and so on.

in inquisitorial a judge or investigator sees both sides and has powers to order information is disclosed and warrants etc…

this idea that our system isnt perfect but its the best there is is a cop out.

sexual assault case would be a great pilot for what I am suggesting.

if people like slater breached the suppression order then he goes to jail until the case has ended.

If we can have offences such as assault, burglary upgraded to aggravated then surely if NZ was to go down the road of Inquisitorial trials for sex offences surely any crime outside of the rape itself could become an aggravated part of the charge. i.e. stupefying, kidnapping etc…

Edit. I just re read my comment. I am not in anyway saying one rape is worse than another, any rape is hideous. But the excuse seemed to be separating other crimes committed during the rape couldn’t be heard under the inquisitorial system. Please correct me if my interpretation is skewed

If Simon Power were to return to politics, I’d imagine he would be returning with the backing of some big money behind him. Imagine Don Brash when he entered the National Party, without the Mr Migoo level of political awareness.

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